The Case for repealing ASIO powers

The extraordinary detention powers that were conferred on ASIO after the September 11 terrorist attacks in the US have not led to any prosecutions and should be repealed, the most comprehensive study of them to have been published has found.

A decade after the ASIO Amendment Act was passed, the evidence demonstrates that it does not protect Australians against terrorism and does not justify the law's infringement of human rights, according to the report published in the Melbourne Law Review.

The act established a controversial warrants system known as the Special Powers Regime, which allowed the spy agency to question and detain people who were not suspects.

It is due to expire under a sunset clause that takes effect in 2016, at which point Parliament will decide whether it should be adopted permanently, scrapped or temporarily renewed. But researchers from University of NSW's Gilbert + Tobin Centre of Public Law said in their report that the case to continue the laws had not been made out.

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Figures obtained from ASIO demonstrate that the agency sought and obtained 14 questioning warrants in the first two years of the act's operation but only two since 2006. However, there was no corresponding decline in the number of terrorism prosecutions, which indicated that they were neither being used to enable arrests nor gather intelligence.

No detention warrant has ever been sought or issued.

''The inescapable conclusion seems to be that ASIO does not regard the Special Powers as particularly useful and that Questioning Warrants are not an essential weapon in the fight against terrorism,'' said the authors, Lisa Burton, Nicola McGarrity and George Williams.

''These powers might be acceptable if they were required to protect Australia from a terrorist act. However they have rarely been used.''

The report, The Extraordinary Questioning and Detention Powers of the Australian Security Intelligence Organisation, comes as the Prime Minister, Julia Gillard, has declared the ''9/11 decade'' to be over and turned her gaze to the Asia-Pacific.

Professor Williams said this meant the Special Powers Regime should be repealed.

''This is the quintessential 9/11 law that in my view was not even justified at the time,'' he said. The federal police could now detain, which was preferable because the police were subject to more checks and balances, he said.